For the week of August 6 - 12, 2003

Sex, marriage
and civil society

Commentary by Adam Tanous

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How much do you think your neighbors know about your sex life? Do they know what you do or don’t do, whether you and your spouse use contraception and, if so, what kind? Do they know whether the woman of the household, for whatever reason, has ever had an abortion?

If that line of questioning is upsetting or unnerving it should be. Instinctively, we seem to know they are private issues that really have no bearing on anyone else in society. The Supreme Court found there to be just such support for privacy in the Constitution, specifically in the 1965 Griswald v. Connecticut contraceptive case and the 1973 Roe v. Wade abortion case. The court found that support in the Ninth and 14th Amendments. The former states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Section one of the Fourteenth Amendment states in part, " …No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …"

In essence the court was reaffirming that rights not specifically enumerated in the Constitution—privacy rights—cannot be denied simply because abortion and contraception per se did not exist at the time of the writing of the Constitution.

The privacy debate, 30 years later, is in full bloom. The Supreme Court, in Lawrence v. Texas, recently struck down the Texas ban on private consensual sex between adults of the same sex. Justice Anthony M. Kennedy read the majority opinion. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter … (the case involved) two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime."

Justice Sandra Day O’Connor voted with the majority but for different reasons. She objected to the Texas law because it violated the constitutional guarantee of equal protection under the law (again the 14th Amendment). She seemed to be saying: How could the Constitution allow certain sexual practices when heterosexuals engage in them, but then bar those same practices when homosexuals are involved.

What is rightfully left out of this ruling is any moral judgment. Which sexual practices are moral and which are not is, first of all, unanswerable and, second, has no bearing on the legal principles. Morality is more grounded in religion, and, hence, more subjective in nature than is the rule of law in civil society.

Now, of course, all this is heading to a bigger stage. After all, there are only four states that consider consensual homosexual conduct a crime (Missouri, Texas, Kansas and Oklahoma), and nine that ban both homosexual and heterosexual sodomy.

That bigger stage is the battle over whether to allow gay marriage or not. President Bush last week said that his lawyers were working out ways to put into law the definition of marriage as being between "a man and a woman."

Some would probably respond to the push for gay marriage in terms of: Why does it really matter to them? But what’s at stake goes beyond the obvious public and legal statement of commitment between two people. Issues of health benefits, tax consequences, hospital visitation rights and estate laws are also in the balance.

Predictably, all but two of the Democratic presidential candidates for president, Rev. Al Sharpton and Rep. Dennis J. Kucinich of Ohio, have side-stepped supporting gay marriage by supporting instead "civil unions." As far as I can tell, it’s a game of semantics. Civil unions basically afford people the same legal status but don’t carry the politically explosive connotation of gay marriage. Civil unions also lack the symbolism of marriage, which is of no small import.

What is really at issue here is how we view marriage—as a civil or religious institution. It may be that the institution, at least in this country and in Great Britain, was originally part and parcel of religious tradition, primarily Christian. It seems, though, that the social and cultural landscape has changed dramatically. First, I believe there is a growing secular tradition of marriage. There are many in this country who do not view marriage as a sacrament; it is not necessarily a means to procreate and people the earth according to God’s plan. Many see commitment and devotion as being the fundamental principles underlying marriage.

What’s more, those who do view marriage in a religious sense, cannot be easily put into a tidy box of values. Religious tradition in this country is not what it used to be. It is much more. The range of beliefs, traditions and religions has exploded in the last century. So, defining marriage as solely a religious tradition becomes problematic. What religion are we talking about? Roman Catholicism, Islam, Hinduism, Buddhism, Judaism, Animism? Each has its own code of beliefs and morality. Just as the Vatican terms same sex marriages as a threat to society and "gravely immoral," another religion in the rainbow of religions might see things quite differently.

The Vatican maintains that the "legal recognition of homosexual unions … would mean … the approval of deviant behavior …" That in itself is a curious statement coming in the wake of the Catholic Church’s sexual abuse scandal and its efforts to protect offending priests. It also illustrates to me that law and morality not only do, but also should diverge. Legal codes are there to protect members of society from others. Crimes, I believe, implicitly harm others. That someone has a different view of God or marriage or sexual propriety than I does no harm to me. Each one of us lives in a slightly different moral universe. What’s the threat to society in that?

One woman or man’s "deviant behavior" might be another’s gesture of intimacy and love. In the end, all we seek is a little compassion and love and peace from each other. Whoever finds that Holy Grail, and however they get there is their business.

 

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